point. The better opinion seems to favour a negative answer (7).

Dangerous or vicious animals. Closely connected with this doctrine is the responsibility of owners of dangerous animals. "A person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril." If it escapes and does mischief, he is liable without proof of negligence, neither is proof required that he knew the animal to be mischievous, if it is of a notoriiously fierce or mischievous species ("). If the animal is of a tame and domestic kind, the owner is liable only on

(q) Read v. Edwards (1864), 17 C. B. N. S. 245, 34 L. J. C. P. 31; and see Millen v. Fawdry, Latch, 119.

(r) As a monkey: May v. Burdett (1846), 9 Q. B. 101, and 1 Hale, P. C. 430,

there cited. An elephant is a dangerous animal in England: Filburn v. Aquarium Co. (1890), 25 Q. B. Div. 258, 59 L. J. Q. B. 471.

Dangerous or vicious animals. Of one keeping wild animals a very high degree of care is demanded. Scribner v. Kelley, 38 Barb. 14; Vredenburg v. Behan, 33 La. An. 627; Van Lenven v. Lyke, 1 N. Y. 516; 49 Am. Dec. 346; Earl v. Van Alstyne, 8 Barb. 630.

With reference to domestic animals, in the case of Losee v. Buchanan (51 N. Y. 476), the court said, "the owner is not responsible for such injuries as they are not accustomed to do, by the exercise of vicious propensities which they do not usually have, unless it can be shown that he has knowledge of the vicious habit and propensity. As to all animals, the owner can usually restrain and keep them under control, and if he will keep them he must do so. If he does not, he is responsible for any damage which their well-known disposition leads them to commit. I believe the liability to be based upon the fault which the law attributes to him, and no further actual negligence need be proved than the fact that they are at large unrestrained."

In the case of Klenberg v. Russell (125 Ind. 531; 25 N. E. Rep. 596), the foregoing is approved and Fletcher v. Rylands cited. "The gist of the action is not the keeping of animals, but the keeping with knowledge of the mischievous propensity, whether proceeding from a savage disposition or not." Evans v. McDermott, 49 N. J. L. 163; 6 At. Rep. 653; 60 Am. Rep. 605. See Sylvester v. Maag, 155 Pa. St. 227; 26 At. Rep. 860; Nehr v. State, 35 Neb. 638; 53 N. W. Rep. 589; Robinson ». Marino, 3 Wash. St. 434; 28 Pac. Rep. 752; Fake v. Addicks, 45 Minn. 38; 47 N.

proof that he knew the particular animal to be "accustomed to bite mankind," as the common form of pleading ran in the case of dogs, or otherwise vicious; but when such proof is supplied, the duty is absolute as in the former case. It is enough to show that the animal has on foregoing occasions manifested a savage disposition, whether with the actual result of doing mischief on any of those occasions or not (8). But the necessity of proving the scienter, as it used to be called from the language of pleadings, is often a greater burden on the plaintiff than that of proving negligence would be; and as regards injury to cattle or sheep it has been done away with by statute.

(8) Worth v. Gilling (1866), L. R. 2 C. P. 1. As to what is sufficient notice to the defendant through his servants,

Baldwin v. Casella (1872), L. R. 7 Ex. 325, 41 L. J. Ex. 167; Applebee v. Percy (1874), L. R. 9 C. P. 647, 43 L. J. C. P. 365.

W. Rep. 50; Vrooman v. Lawyer, 13 Johns. 339; Durham v. Musselman, 2 Blackf. 96; Smith v. Causey, 22 Ala. 568; Wormley v. Gregg, 65 Ill. 251; Dearth v. Baker, 22 Wis. 73; Mann v. Weiland, 81 Pa. St. 243; Coggswell v. Baldwin, 15 Vt. 404; Partlow v. Haggarty, 35 Ind. 178; Williams v. Moray, 74 Ind. 25; Wolf v. Chalker, 31 Conn. 121; Oakes v. Spaulding, 40 Vt. 347; Kittredge v. Elliott, 16 N. H. 77; Rider v. White, 65 N. H. 54; Lyons v. Merrick, 105 Mass. 71; Linnehan v. Simpson, 126 Mass. 510; Coggswell v. Baldwin, 15 Vt. 404; Marble v. Ross, 124 Mass. 44; Miller v. Curry, 122 Ind. 403; 24 N. E. Rep. 216; State v. McDermott, 49 N. J. L. 163; 6 At. Rep. 653; McGuire v. Ringrose, 41 La. An. 1029; 6 So. Rep. 895; Shaw v. Craft, 37 Fed. 317; Staetter v. McArthur, 33 Mo. App. 218; Laherty v. Hogan, 13 Daly, 533; Bell v. Leslie, 24 Mo. App. 661; Kinmoulh v. McDougall, 64 Hun, 636; Hammond v. Melton, 42 Ill. App. 186; Garrison v. Barnes, Id. 21.

In several of the United States, statutes have been passed holding the owners of dogs to a greater responsibility than at common law. See Smith v. Montgomery, 52 Me. 178; Orne v. Roberts, 51 N. H. 110; Jones v. Sherwood, 37 Conn. 466; Smith v. Skut, 31 Barb. 333; Osincup v. Nichols, 49 Barb. 145; Auchmuty v. Ham, 1 Denio, 495; Fairchild v. Bentley, 30 Barb. 147; Paff v. Slack, 7 Pa. St. 254; Campbell v. Brown, 19 Pa. St. 359; Kerr v. O'Connor, 63 Pa. St. 341; Mitchell v. Clapp, 12 Cush. 278; Pressey v. Wirth, 3 Allen, 191; Brewer v. Crosby, 11 Gray, 29; Smith v. Cansey, 22 Ala. 568; Swift v. Applebone, 23 Mich. 252; Elliott v. Herz, 29 Mich. 202; Chunot v. Larson, 43 Wis. 536; 28 Am. Rep. 567; Job v. Harlan, 13 Ohio St. 485; Gries v. Zeck, 24 Ohio St. 329; Mercale v. Down, 64 Wis. 323.

And the occupier of the place where a dog is kept is presumed for this purpose to be the owner of the dog (†). The word "cattle" includes horses (u) and perhaps pigs (v).

Fire, firearms, etc. The risk incident to dealing with fire, firearms, explosive or highly inflammable matters, corrosive or otherwise dangerous or noxious fluids, and (it is apprehended) poisons, is accounted by the common law among those which subject the actor to strict responsibility. Sometimes the term "consummate care" is used to describe the amount of caution required: but it is

(t) 28 & 29 Vict. c. 60 (A. D. 1865). There is a similar Act for Scotland, 26 & 27 Vict. c. 100. See Campbell on Negli. gence, 2nd ed. pp. 53-55. Further protection against mischievous or masterless dogs is given by 34 & 35 Vict. c. 56, a

statute of public police regulations out. side the scope of this work.

(u) Wright v. Pearson (1869), L. R. 4 Q. B. 582.

(v) Child v. Hearn (1874), L. R. 9 Ex. 176, 43 L. J. Ex. 100 (on a different Act).

Fire, fire-arms, etc. In the Vermont case of Hadley v. Cross (34 Vt. 586) it was held, that one using explosive machinery and substances involving the personal safety and lives of others is required to exercise nothing less than the most watchful care and the most active diligence. See Wellington v. Downer Kerosine Oil Co., 104 Mass. 68; Furth v. Foster, 7 Robt. 484; Losee v. Buchanan, 51 N. Y. 476; Marshall v. Wellwood, 38 N. J. L. 339; Spencer v. Campbell, 9 Watts & S. 32; McAndrews v. Collerd, 42 N. J. L. 189; 36 Am. Rep. 508; Devlin v. Gallagher, 6 Daly, 494; Koster v. Noonan, 8 Id. 231; Beauchamp v. Saginaw Mining Co., 50 Mich. 163; 45 Am. Rep. 30; Hay v. The Cohoes Co., 2 N. Y. 159; Colton v. Onderdonk, 69 Cal. 155; Allison v. Western, etc. R. Co., 64 N. C. 383.

One who sells gun-powder to an inexperienced child is liable for injuries to him from its explosion. Carter v. Towne, 98 Mass. 567. So as to a toy pistol. Binford v. Johnson, 82 Ind. 426; 42 Am. Rep. 508. For the unlawful or negligent discharge of fire-works, resulting in injury, one is liable. Colvin v. Peabody, 155 Mass. 104; Conklin v. Thompson, 29 Barb. 218; McDade v. City of Chester (Pa.), 20 Am. & Eng. Corp. Cas. 440; Bradley v. Andrews, 51 Vt. 530; Fisk v. Wait, 104 Mass. 71; Jenne v. Sutton, 43 N. J. L. 257; 39 Am. Rep. 578.

In Callahan v. Warne (40 Mo. 131) one exposing liquid poison resembling water in jars on his premises is liable for the death of a laborer who by mistake drank the poison. See Henry v. Dennis, 93 Ind. 452; 47 Am. Rep. 378; Bishop v. Weber, 139 Mass. 411; 1 N. E. Rep. 154.

doubtful whether even this be strong enough.

At least, we do not know of any English case of this kind (not falling under some recognized head of exception) where unsuccessful diligence on the defendant's part was held to exonerate him.

Duty of keeping in fire. As to fire, we find it in the fifteenth century stated to be the custom of the realm (which is the same thing as the common law) that every man must safely keep his own fire so that no damage in any wise happen to his neighbour (x). In declaring on this custom, however, the averment was " ignem suum tam negligenter custodivit:" and it does not appear whether the allegation of negligence was traversable or not (y). We shall see that later authorities have adopted the stricter view.

The common law rule applied to a fire made out of doors (for burning weeds or the like) as well as to fire in a dwelling-house (z). Here too it looks as if negligence was the gist of the action, which is described (in Lord Raymond's report) as "case grounded upon the common custom of the realm for negligently keeping his fire." Semble, if the fire were carried by sudden tempest it would

(x) Y. B. 2 Hen. IV. 18, pl. 5. This may be founded on ancient Germanic custom: cp. Ll. Langob. cc. 147, 148 (A. D. 643), where a man who carries fire more than nine feet from the hearth is said to do so at his peril.

(y) Blackstone (1.431) seems to assume negligence as a condition of liability. (z) Tubervil or Tuberville v. Stamp, 1 Salk. 13, s. c. 1 Ld. Raym. 264.

Duty of keeping in fire. In the United States the right of a person to kindle a fire on his own land, using reasonable care and diligence to prevent its spreading and doing injury to the lands of others, is recognized. But "a man who negligently sets fire on his own land, and keeps it negligently, is liable to an action at common law for any injury done by the spreading or communication of the fire directly from his own land to the property of another, whether through the air or along the ground, and whether he might or might not have reasonably anticipated the particular manner and direction in which it is actually communicated." Higgins v. Dewey, 107 Mass. 494. See Tourtellot v. Rosebrook, 11 Metc. 460;

be excusable as the act of God. Liability for domestic fires has been dealt with by statute, and a man is not now answerable for damage done by a fire which began in his house or on his land by accident and without negligence (a).

The use of fire for non-domestic purposes, if we may coin the phrase, remains a ground of the stricest responsibility.

own

Carrying fire in locomotives. Decisions of our time have settled that one who brings fire into dangerous proximity to his neighbour's property, in such ways as by running locomotive engines on a railway without express statutory authority for their use (b), or bringing a traction engine on a highway (c), does so at his peril. And a company authorized by statute to run a steam-engine on a

(a) 14 Geo. III. c. 78, s. 86, as interpreted in Filliter v. Phippard (1847), 11 Q. B. 347, 17 L. J. Q. B. 89. There was an earlier statute of Anne to a like effect; 1 Blackst. Comm. 431; and see per Cur. in Filliter v. Phippard. It would seem that even at common law the defendant would not be liable unless he knowingly lighted or kept some fire to begin with; for otherwise how could it be described as ignis suus?

(b) Jones v. Festiniog R. Co. (1868), L. R. 3 Q. B. 733, 37 L. J. Q. B. 214. Here diligence was proved, but the company held nevertheless liable. The rule was expressly stated to be an application of the wider principle of Rylands v. Fletcher; see per Blackburn J. at p. 736.

(c) Powell v. Fall (1880), 5 Q. B. Div.

597, 49 L. J. Q. B. 428. The use of traction engines on highways is regulated by statute, but not authorized in the sense of diminishing the owner's liability for nuisance or otherwise; see the sections of the Locomotive Acts, 1861 and 1865, in the judgment of Mellor J. at p. 598. The dictum of Bramwell L. J at p. 601, that Vaughan v. Taff Vale R. Co. (1860), Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247, p. 439, above, was wrongly decided, is extra judicial. That case was not only itself decided by a Court of coordinate authority, but has been approved in the House of Lords; Hammersmith R. Co. v. Brand (1869), L. R. 4 H. L. at p. 202; and see the opinion of Blackburn J. at p. 197.

Barnard v. Poor, 21 Pick. 380; Powers v. Craig, 22 Neb. 621; 35 N. W. Rep. 888; Sweeny v. Merrill, 38 Kan. 216; 16 Pac. Rep. 454; Richards v. Schleusener, 41 Minn. 49; 42 N. W. Rep. 599; John Mouat Lumber Co. v. Wilmore, 15 Colo. 136; 25 Pac. Rep. 556; Delaware, etc. R. Co. v. Salmon, 39 N. J. L. 299, disapproving 35 N. Y. 210, and 62 Pa. St. 353. But see McGibbon v. Baxter, 51 Hun, 587; 4 N. Y. S. Rep. 382; Louisville, etc., Ry. Co. v. Hart, 119 Ind. 273; 21 N. E. Rep. 753; Clark v. Foot, 8 Johns. 421; Stewart v. Hawley, 22 Barb. 619.